Citation Nr: 22012240 Decision Date: 03/03/22 Archive Date: 03/03/22 DOCKET NO. 18-07 215 DATE: March 3, 2022 ORDER New and material evidence having been received, the previously denied service connection claim for an inguinal hernia disorder is reopened. New and material evidence having been received, the previously denied service connection claim for a right shoulder disorder is reopened. REMANDED Entitlement to service connection for an inguinal hernia disorder is remanded. Entitlement to service connection for a right shoulder disorder is remanded. Entitlement to service connection for an eye disorder is remanded. Entitlement to service connection for a heart disorder is remanded. Entitlement to service connection for a gastrointestinal disorder, including gastroesophageal reflux disease (GERD), hiatal hernia, esophagitis, Barrett's esophagus, and chronic gastritis/duodenitis, is remanded. Entitlement to service connection for a low back disorder is remanded. FINDINGS OF FACT 1. An unappealed August 2016 rating decision denied service connection for inguinal hernia and a right shoulder disorder. 2. Evidence added to the record since the August 2016 rating decision raises a reasonable possibility of substantiating the previously denied claims. CONCLUSIONS OF LAW 1. The August 2016 rating decision denying entitlement to service connection for inguinal hernia and a right shoulder disorder is final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. New and material evidence was received, and the claims for entitlement to service connection for inguinal hernia and a right shoulder disorder are reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1969 to February 1971, from August 1976 to December 1976, and from February 2003 to January 2004. Records show he had additional National Guard service including from September 1999 to May 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2017 rating decision. In November 2021, the Veteran testified at a video conference hearing before the undersigned Veterans Law Judge. The transcript of that hearing is of record. Although the November 2017 decision reopened and adjudicated the right shoulder and inguinal hernia issues on the merits, the Board is required to determine whether new and material evidence has been presented when a claim has been previously disallowed based upon the same factual basis. Barnett v. Brown, 83 F.3d 1380, 1384 (Fed. Cir. 1996). For this reason, the Board has included the issues as to whether new and material evidence has been received to reopen the claims for service connection. New and Material Evidence For claims to reopen decided prior to February 19, 2019, VA law provides that a claimant may reopen a finally adjudicated claim by submitting new and material evidence. New evidence means existing evidence not previously submitted to agency decisionmakers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New and material evidence received prior to the expiration of the appeal period, or prior to the appellate decision if a timely appeal has been filed, will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. 38 C.F.R. § 3.156(b). The credibility of evidence must be presumed for the purpose of deciding whether it is new and material. Justus v. Principi, 3 Vet. App. 510, 513 (1992). The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held, however, that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (Fed. Cir. 2000). When deciding as to whether received evidence meets the definition of new and material evidence, the Board should take cognizance of whether that evidence could, if the claim were reopened, reasonably result in substantiation of the claim. Shade v. Shinseki, 24 Vet. App. 110 (2010). An August 2016 rating decision denied service connection for inguinal hernia and a right shoulder disorder. It was noted that the basis for the decision was the absence of evidence of an event, injury, or disease in service as to these claims. The Veteran was adequately notified of the decisions by correspondence dated August 8, 2016, but he did not submit an appeal. No new and material evidence was obtained as to the issues within one year of the determination. Although additional service treatment records were received by VA on August 9, 2017, no evidence relevant to these claims was received. Accordingly, the rating decisions became final. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. The evidence added to the record since the August 2016 rating decision includes statements from the Veteran providing additional information as to these claims, lay statements from fellow servicemen recalling injuries he sustained during training, copies of private treatment records, and private medical statement dated in November 2017 noting that the Veteran had musculoskeletal disease that were secondary to military service. As the new evidence obtained in this case may reasonably result in substantiation of the claims, the previously denied service connection claims are reopened. REASONS FOR REMAND 1. Entitlement to service connection for an inguinal hernia disorder is remanded. 2. Entitlement to service connection for a right shoulder disorder is remanded. 3. Entitlement to service connection for an eye disorder is remanded. 4. Entitlement to service connection for a heart disorder is remanded. 5. Entitlement to service connection for a gastrointestinal disorder, including GERD, hiatal hernia, esophagitis, Barrett's esophagus, and chronic gastritis/duodenitis, is remanded. 6. Entitlement to service connection for a low back disorder is remanded. The Veteran contends that he has eye, heart, gastrointestinal, inguinal hernia, right shoulder, and low back disorders as a result of military service. He asserts that he developed eye problems due to environmental (road dust) exposures in service. He reports that that he sustained an inguinal hernia during training in 1981 with recurrence in 1984. He similarly recalls injuring his right shoulder during training in 1989. He adds that his GERD symptoms began in approximately 1986 and were aggravated during his period of active service in 2003. The Veteran maintains that he developed heart disorders due to episodes of high blood pressure during service. He relates that his low back disorder was caused or aggravated by his inguinal hernia. In January 2022, the Veteran provided a copy of an article addressing exercises for back pain due to adhesions. The available record shows that VA efforts to obtain the Veteran's service treatment and personnel records through normal channels were unsuccessful and that only a limited number of reports are of record. In a July 2018 brief in support of the appeal, the Veteran's representative asserted that additional VA efforts were required to obtain service records. It was noted that there was no indication of any request for "DPRIS" records as suggested by an August 2015 Record Management Center response. Lay statements dated in November 2017 from fellow servicemen recalled the Veteran having sustained inguinal hernia injuries during training in 1981, 1982, and 1984. Further VA efforts are required to obtain any available records, to include records associated with any active and/or inactive duty for training. A November 2017 private medical statement noted diagnoses including hypertensive cardiovascular disease, degenerative joint disease of the shoulders, chronic gastritis, GERD, and hiatal hernia. The physician found it was more probable than not that the Veteran's cardiovascular and musculoskeletal diseases were secondary to military service. No specific rationale was provided. The statement also referred to in-service treatment and VA treatment records, generally, implying that pertinent records were reviewed by the physician. While no specific reports from these sources were identified and it is unclear if records other than those previously obtained or provided to VA, further efforts should be taken to obtain copies of any additional evidence pertinent to the Veteran's claims. The gastrointestinal disorder claim was addressed in an October 2017 VA examination. However, the Veteran subsequently provided additional information and copies of pertinent treatment reports in support of his claim. It is unclear from his November 2017 private medical statement if the Veteran's physician believed his gastrointestinal disorders were the result military service. VA has a duty to assist veterans in substantiating claims for VA benefits. The duty to assist includes obtaining a thorough and contemporaneous examination where necessary to reach a decision on a claim. See 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. The Veteran's eye, heart, inguinal hernia, right shoulder, and low back claims have been addressed by VA examination. The matters are REMANDED for the following action: 1. Appropriate action must be taken to obtain the Veteran's complete service personnel records and service treatment records, to include all documents pertaining to his service in the Republic of Puerto Rico National Guard. Verify all active duty for training and inactive duty training dates. If necessary, a request should be made to the Defense Finance and Accounting Service (DFAS). A specific request should be sent to the Defense Personnel Records Information Retrieval System (DPRIS), unless an explanation is provided as to why such action is not warranted. Document all requests for information as well as all responses in the claims file. 2. Ask the Veteran to identify or, if they have not previously submitted to VA, to provide copies of the in-service and VA treatment records referenced in the November 2017 private medical statement previously submitted. 3. Schedule the Veteran for an appropriate VA examination for an opinion as to whether it is at least as likely as not (50 percent probability or greater) that he has present eye, heart, gastrointestinal, inguinal hernia, right shoulder, or low back disabilities that: a. had its onset or was aggravated (for a pre-existing disability that increased in severity beyond its natural progress) during a period of service, b. is etiologically related to a period of service, to include as a result of a specific event, injury, or disease. All necessary tests and studies should be conducted. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Douglas The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.